For the first time in the checkered 21-year history of the prison at Guantanamo Bay, the United States recently allowed a United Nations special rapporteur to visit the detention center and meet with detainees. In the special rapporteur’s report, released in late June, she emphasized the significance of this decision by the Biden administration. “Few countries take meaningful steps to address egregious past human rights violations or undertake action to undo the most shocking of harms,” she noted.
I commend the Biden administration for its willingness to open itself up to difficult external scrutiny. Such transparency is key to acknowledging our nation’s mistakes, and to righting a wrong that was not of this Administration’s making. Indeed, it is this openness that separates free democracies from autocracies and dictatorships.
But it is what the Biden administration does next on Guantanamo that matters most.
Following her visit to Guantanamo, the special rapporteur found that the legacy of torture and arbitrary detention combined with the current structural conditions at Guantanamo constitute “cruel, inhuman, and degrading treatment” and “may also meet the legal threshold for torture.” Deficiencies in the conditions at Guantanamo include insufficient access to counsel, lack of communication with family, inadequate medical treatment, and denial of due process and fair trials.
The special rapporteur also met with families of current and former detainees and detailed the ongoing challenges they face following release from Guantanamo. And she met with family members of those who were killed on 9/11 and, in a particularly compelling portion of the report, assessed their ongoing need for support and their right to accountability and justice for the loss of their loved ones. She determined that the United States’ torture of detainees after 9/11 is the “single most significant barrier to fulfilling victims’ rights to justice and accountability.”
These findings should be a wakeup call for the Biden administration. Though they are not responsible for the decision to discard human rights and the rule of law in the difficult months after 9/11, the administration has the power and the responsibility to make it right. Their failure to do so would be their own.
Rather than perpetuating the injustices that the Biden administration inherited, the administration should address the ongoing violations found by the special rapporteur and redouble its efforts to end this dark chapter of American history. This will entail transferring the men who have been cleared for release from Guantanamo and securing guilty pleas for those who have been charged with a crime.
Only 30 men remain detained at Guantanamo. The majority of these men, 19 of them, have never been charged with a crime, yet have been detained, in many cases, for more than 20 years. Sixteen of these men have been cleared for release from Guantanamo yet remain imprisoned at the facility—in some cases more than 13 years after being approved for transfer. The Biden administration should transfer these cleared men without further delays and excuses. I understand that resettlement and repatriation of detainees is a challenging endeavor, but there is no excuse for continuing to imprison men who have long been approved for transfer and who have never been charged with a crime.
These findings should be a wakeup call for the Biden administration.
The administration must also address the three remaining men who have not yet been approved for release, but who have never been charged with a crime. Indefinite detention without charge or trial for years on end is not consistent with who we aspire to be as a nation.
The special rapporteur’s report should also serve as a wakeup call that the military commissions, in which a handful of detainees have been charged, are a road to nowhere. The victims of 9/11 and their family members deserve whatever measure of justice and closure can still be salvaged. We must accept and face the costs and consequences of the decision to torture detainees in our custody and to set up a new and untested court system from scratch. We will only betray the victims and their families if we press forward with the military commissions. In the words of former Bush administration Solicitor General Ted Olson, who lost his wife Barbara in the 9/11 attacks, it is time to “face reality and bring this process to an end” by securing guilty pleas.
The Biden administration has a legal and moral obligation to deliver justice for these family members. Sending them back to the never-ending purgatory of the failed commissions rather than doing the hard work of securing agreement on the terms of a guilty plea is inexcusable.
I urge the Biden administration to build on the courage it showed in allowing the special rapporteur’s visit by now taking the hard steps that are necessary to end the ongoing injustice of Guantanamo.